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05/04/95 CECELIA KUBIAN v. ALEXIAN BROTHERS MEDICAL

May 4, 1995

CECELIA KUBIAN, INDIV., AND AS NEXT OF KIN OF FRANK KUBIAN, DECEASED, PLAINTIFF-APPELLANT,
v.
ALEXIAN BROTHERS MEDICAL CENTER, HOSPICE CARE, INC., AND HERBERT J. REISEL, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Du Page County. No. 91-L-2117. Honorable William E. Black, Judge, Presiding.

Presiding Justice McLAREN delivered the opinion of the court: Inglis and Rathje, JJ., concur.

The opinion of the court was delivered by: Mclaren

PRESIDING JUSTICE McLAREN delivered the opinion of the court:

The plaintiff, Cecelia Kubian, filed a complaint against the defendants, Alexian Brothers Medical Center (Alexian Center), Hospice Care, Inc. (Hospice Care), and Dr. Herbert Reisel, which included counts for wrongful death and for loss of consortium. The trial court granted the defendants' section 2-615 motion (735 ILCS 5/2-615 (West 1992)) to dismiss some of the plaintiff's counts, including the loss of consortium count, on February 24, 1992. Subsequently, the plaintiff amended her complaint, and the defendants, for the second time, filed motions to dismiss the remaining counts. As a consequence, the plaintiff filed her second amended complaint. Subsequently, the defendants, for the third time, filed motions to dismiss, this time pursuant to section 2-619(a)(2) (735 ILCS 5/2-619(a)(2) (West 1992)), though defendant Reisel filed a motion for summary judgment (735 ILCS 5/2-1005 (West 1992)), not a 2-619 motion (735 ILCS 5/2-619 (West 1992)). The trial court granted the defendants' motion to dismiss the wrongful death count pursuant to section 2-619. 735 ILCS 5/2-619 (West 1992).

The issues on appeal are whether the trial court erred in dismissing the plaintiff's wrongful death count pursuant to section 2-619 (735 ILCS 5/2-619 (West 1992)) and whether the plaintiff's loss of consortium count, dismissed pursuant to section 2-615 (735 ILCS 5/2-615 (West 1992)), should be reinstated. We affirm in part, reverse in part, and remand.

The facts in this case are undisputed. The plaintiff's spouse, Frank Kubian, was transported to the Alexian Center on March 7, 1991, where Kubian was under the care of Dr. Reisel. Kubian remained under Reisel's care in an intensive care unit until Reisel signed a "do not resuscitate" order (DNR) on March 12, 1991, at which time Reisel also authorized a transfer of Kubian to the Hospice Care Unit, located within the Alexian Center facility. On March 13, 1991, a few hours after being transferred to the Hospice Care Unit, Frank Kubian died.

The DNR order and the transfer of Frank Kubian to the Hospice Care Unit were made with the written consent of Priscilla Pisarski, the deceased's daughter from a marriage previous to his union with the plaintiff. No informed consent declaration was given, however, from either Frank Kubian or the plaintiff, who had been married to Kubian for 12 years and was present at the hospital when Pisarski signed the consent forms. The plaintiff alleges that hostile feelings existed between the plaintiff and Pisarski.

On March 13, 1991, Rose Hutchison, a registered nurse, stated in an "Inpatient Unit Interdisciplinary note":

"FRANK KUBIAN was unable to sign all papers due to deterioration and weakness and the daughter signed all of the papers, because:

i. The daughter signed instead of the wife because they have a marriage agreement that they will be responsible for their own medical expenses.

ii. This is a second marriage."

The "marriage agreement" to which the nurse referred is an antenuptial agreement between Frank Kubian and the plaintiff, entered into on May 16, 1979. The agreement provides that the plaintiff would not make a claim as to any part of her spouse's estate and that she waives:

"All right of courtesy [sic], dower, statutory fee, homestead, surviving spouse's award, right to renounce the will of the husband, or other right in and to the property ...


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